In March 2017, Dr. Gregory J. Roscoe, an ear, nose, and throat specialist, performed surgery on Tammy G. Simbeck to remove her right submandibular saliva gland, which is one of the three saliva glands. In the subsequent six weeks, Simbeck regularly reported to the emergency room of the hospital, where she saw Dr. Roscoe. She complained about pain, a swollen and tender neck, numbness in her tongue, difficulty in swallowing, lack of taste, etc. Dr. Roscoe performed a minor surgical procedure, removing a small mass from Simbeck’s esophogaus.
Simbeck also treated with Seungwon Kim, M.D. (“Dr. Kim”). He reviewed a post-surgery CT scan, which showed multiple hemoclips in the right submandibular region, with some located deep to the mylohyoid muscle. (A hemoclip is essentially like a staple that clamps down on something, primarily used to stop bleeding. But if it is put on a nerve, it will essentially cut off the blood supply and kill the nerve.) Dr. Kim had some concerns that the numbness of the tongue may be due to the presence of a hemoclip on the lingual nerve.
On April 22, 2019, Simbeck commenced her Pennsylvania medical malpractice action alleging that Dr. Roscoe’s negligence “was a substantial factor in bringing about an increased harm to” her. Simbeck’s medical malpractice complaint attached an expert report from Expert Witness, setting forth his opinion that Dr. Roscoe “deviated from accepted standards of medical and surgical care in his treatment of . . . Simbeck.” This report made no mention of hemoclips. Dr. Roscoe filed a motion for summary judgment, pointing this out.
At trial, Expert Witness testified that in his expert opinion, Dr. Roscoe damaged Simbeck’s lingual nerve due to “a
substandard performance of the removal of the right submandibular salivary gland . . . , namely because of the failure to preserve and protect the lingual and chorda tympani, but primarily the lingual nerve which provides sensation to the tongue.” As to what specific negligent acts by Dr. Roscoe caused those injuries, however, Expert Witness “couldn’t really say because the detail of [Dr. Roscoe’s] operative report wasn’t great,” and could not say “specifically which instrument” caused the injury. Expert Witness testified that hemoclips “could have,” if it “crush[ed] the nerve and cut[] off its blood supply” and “I’m not even sure a hemoclip was the factor that injured it.”
Dr. Roscoe moved to strike Expert Witness’ testimony. Dr. Roscoe argued: (1) Simbeck’s complaint made “a very specific claim of negligence, . . . that the hemoclip damaged the [lingual] nerve;” but (2) Expert Witness “readily admitted that he can’t say with any certainty that it was a hemoclip that injured the nerve.” Roscoe relied on the same argument to make a motion for nonsuit. However, the trial court did not rule on either.
Later during trial, Simbeck argued that Dr. Roscoe’s placement of “staples” on her lingual nerve was below the standard of care, and this act increased the risk of harm. The trial court agreed with Dr. Roscoe, granted his motion for nonsuit, and thus dismissed Simbeck’s complaint.
On appeal, the Superior Court of Pennsylvania stated in its August 6, 2025 Memorandum: “a plaintiff invokes the theory of increased risk of harm when they allege “the defendant’s act or omission failed in a duty to protect against harm from another source” … [Simbeck] makes no claim that Dr. Roscoe failed in a duty to protect her “against harm from another source,” nor that she ultimately suffered an injury from another source. Instead, she continues to insist her injury was a result of Dr. Roscoe’s placement of hemoclips on her lingual nerve, which in turn “increased the risk of harm to” her. Simbeck’s Brief at 24. This understanding of the increased risk of harm doctrine is mistaken. Accordingly, we agree with the trial court’s rejection of Simbeck’s increased risk of harm claim.”
“The trial court concluded that Expert Witness’s testimony “failed to establish that any negligent act was committed by [Dr.] Roscoe which caused harm to [Simbeck’s] lingual nerve, to the requisite ‘reasonable degree of medical certainty.’” Trial Court Opinion, 6/10/24, at 11. The trial court thoroughly discussed Expert Witness’s testimony but ultimately
determined that Expert Witness never established how Dr. Roscoe was negligent, nor how the negligence caused an injury to Simbeck, especially regarding the allegations of negligence in the complaint. On appeal, Simbeck fails to persuade us that her expert sufficiently identified the standard of care that Dr. Roscoe breached and that this breach caused her injuries to a reasonable degree of medical certainty. Therefore, no relief is due on Simbeck’s first issue.”
Source Simbeck v. Roscoe, M.D., J-A09043-25.
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